Paramount Enterprises, Inc. v. Mitchell

• Decision Date: 10 March 1932
• Parties: PARAMOUNT ENTERPRISES, Inc. v. MITCHELL et al.
• Court: Florida Supreme Court

140 So. 328

104 Fla. 407

PARAMOUNT ENTERPRISES, Inc. v. MITCHELL et al.

Florida Supreme Court, Division B.

March 10, 1932

Suit by Paramount Enterprises, Incorporated, against Roy W. Mitchell and another. From a decree denying plaintiff's application for a temporary restraining order, complainant appeals.

Affirmed. Appeal from Circuit Court, Dade County; H. F Atkinson, judge.

COUNSEL

Milam McIlvaine & Milam, of Jacksonville, for appellant.

Robert R. Taylor, Jr., of Miami, for appellees.

OPINION

TERRELL J.

Appellant as complainant below filed its bill of complaint in the circuit court of Dade county seeking to restrain the appellees as defendants from picketing or otherwise interfering with its theater business in Miami, Fla. An application for temporary restraining order was denied, and while the record does not so apprise us, it is admitted by counsel for both parties that a motion of defendants to dismiss the bill of complaint was verbally overruled by the chancellor. This appeal is from the decree of the chancellor denying the application of complainant for temporary restraining order.

As a preface to an adjudication of the main question, we are confronted here with an application for temporary restraining order pending the disposition of the cause on appeal, said application being grounded on that provision of section 5 of article 5 of the Constitution of Florida, which empowers this court to 'issue * * * all writs necessary or proper to the complete exercise of its jurisdiction.'

We have considered applications for 'writs' under this provision of the Constitution, injunctive in their nature, in the following cases: Cohen v. L'Engle, 24 Fla. 542, 5 So. 235; Jacksonville Electric Light Co. v. City of Jacksonville, 36 Fla. 229, 18 So. 677, 30 L. R. A. 540, 51 Am. St. Rep. 24; Wheeler v. Meggs, 75 Fla. 687, 78 So. 685; Astca Investment Co. v. County of Lake et al., 86 Fla. 639, 98 So. 824; and Stewart v. Thursby (Fla.) 137 So. 7; Maxcy, Inc., v. Mayo, Com'r (Fla.) 139 So. 121; Wester v. Belote (Fla.) 138 So. 721.

The net result of our holding in these cases is to the effect that this court is not clothed with original jurisdiction of the writ of injunction, that in equity cases it has appellate jurisdiction only, that by virtue of the quoted provision of the Constitution it is empowered to and may issue injunctive or any other writs essential to the complete exercise of its jurisdiction, but that it will not invoke the power so granted except in cases carefully investigated and a showing made that the writ sought is indispensable to protect the rights of the party seeking it, or that the law affords no other remedy, or that some constitutional or statutory provision is about to be violated, or that the rights in litigation are of such peculiar or intrinsic value or nature that the facts of the case make it imperative that they be held in status quo pending the adjudication of the cause on appeal.

In Antuono v. City of Tampa, 87 Fla. 82, 99 So. 324, and Anderson v. City of Ocala, 87 Fla. 257, 99 So. 667, we were also confronted with an application for temporary restraining order pending the disposition of the cause on appeal, and we there held that when appeal has been taken from an order denying an injunction and application is made to this court for an injunctional order, in aid of its appellate jurisdiction, predicated on the organic power to issue 'all writs necessary or proper to the complete exercise of its jurisdiction' and the questions presented are of law only, and the cause has been by consent fully argued on the merits, the court may in the interest of the public good, determine the merits of the appeal without passing on the application for a preliminary injunction.

The case at bar is in this category and will be disposed of on the merits without reference to the application for temporary restraining order. It presents the sole question of whether or not picketing one's theater or place of business may be enjoined in this state.

'Picketing' as employed in this case has reference to its use in promoting the strike, boycott, or some other industrial dispute. The 'boycott' is of somewhat doubtful origin or significance, but the lexicographers and courts have defined it as being a combination of many persons to cause loss to some other person, natural or corporate, by coercing others, against their will, to withhold from said person, natural or corporate, their business or trade. It is accomplished by threats on the part of 'many persons' that unless the 'others' do so the 'many persons' will cause loss to them. Century Dictionary; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 77 N.W. 13, 42 L. R. A. 407, 74 Am. St Rep. 421. When the coercion extends to customers of the person or persons boycotted and attempts to coerce them on pain of being boycotted themselves unless they refrain from dealing with the person boycotted, it is called a 'secondary boycott.' Picketing by members of a trade union consists in posting one or more of its members at the entrance or approaches to the office, workshops, or other places of business against which a strike or boycott is being conducted for the purpose of watching or annoying the owner or workmen on the inside or for the purpose of interfering with the business or intimidating its patrons. Black's Law Dictionary; Beck v. Railway Teamsters' Protective Union, supra.

In its more modern significance, the term 'boycott' connotes a variety of action, ranging from a mere withdrawal of business by an individual to an organized effort by associated individuals to procure all others to withdraw from such intercourse. It is accomplished by means ranging from simple persuasion to the disturbance of business relations with third persons and the person boycotted by physical intimidation or violence. Accordingly, boycotts are sometimes referred to as being divided into two classes, primary and secondary; the primary boycott consisting simply of the cessation of concerted action, actions, or dealings with the one boycotted, while in the case of the secondary boycott, an attempt is made to procure parties outside the combination to cease dealings as well. American Federation of Labor v. Buck's Stove & Range Co., 33 App. D. C. 83, 32 L. R. A. (N. S.) 748, text 770; Pierce v. Stablemen's Union, Local No. 8760, 156 Cal. 70, 103 P. 324.

Notwithstanding the wealth of authority on the subject, the law as to boycotting and picketing is in a more or less confused state due to differences in economic sympathies of courts, their method of approach to, and differences of opinion among them as to the fundamental question involved in all such controversies, viz., 'the extent to which it is expedient to permit organized labor to utilize the powers of its organization for the purpose of securing for its members not only direct benefits in a particular employment, but also the indirect benefit arising from the control of the sources of employment.' The decision of each case must necessarily turn on the facts adduced as applied to this fundamental question, so it becomes necessary to discuss the different judicial theories giving rise to the confusion of opinion.

The law recognizes the right of the trades, crafts, guilds, and arts, whether composed of skilled or unskilled workmen, to organize and invite others to join them. When organized, they may use the organization to promote their social, civic, and economic betterment, among other things, that of securing as much as they can for their labor. Employers may also organize for similar purposes and for the purpose of securing the best possible return on their capital. Every other profession and business may organize for like purposes, but when organized, the law recognizes no distinctions among them but all must conform alike to its decrees and mandates. Every organization including its individual members is bound and protected by social and constitutional guaranties that all must respect, among which is the right to peacefully own property and enjoy the pursuit of a trade, business, or profession. The law will not permit such rights to become a prey to those who would without just cause invade them.

It is well settled that employees have a right to combine and fix the amount of their daily wage and to whom they will sell it. It is also true that when not under contract they may quit the services of another at any time they desire. It is alike true that employers have the right to determine the daily wage they are willing to pay and who they will employ. Members of a labor organization may persuade their confederates not to work except on payment of an established wage; they may, without coercion bring their cause to the court of public opinion in a peaceful manner; but neither employer nor employee is permitted to use threats, force, violence, coercion, or intimidation in doing this, nor will employer or employee be permitted to present, urge, or advertise his cause by false statements, libelous attack, insulting language, derogatory implications, or by other means calculated to become a nuisance, obstruct traffic, or in any way to impede or hinder the orderly course of business or other relations. Note 27 A. L. R. 651. Under any other rule every legitimate business would be subject to the whim of any one having opposing views as to the method of its operation.

But appellees contend that the picketing complained of was peaceful picketing against which there is no law in this...